·
extend the scope of the controlled operations provisions to enable
operations against a broader range of criminal activity subject to
appropriate limitations and accountability measures;

·
provide a framework for intelligence and law enforcement agencies
to obtain and use evidence of identity for the purpose of creating
assumed identities for use in the performance of their functions,
subject to authorisation and audit mechanisms;

·
make minor and technical amendments including amendments to the
provisions dealing with the investigation and prosecution of
Commonwealth offences;

·
permit a warrant authorising the use of a listening device in
relation to a particular item to be sought;

· clarify that financial
transaction intelligence provided to AUSTRAC by comparable foreign
agencies is FTR information and give AUSTRAC a power to inspect the
record keeping systems of cash carriers; and

· prescribe CrimTrac for the
purposes of the Part VIIC (pardons, quashed convictions and spent
convictions).

The
proposed Government amendments to the Bill respond to the
recommendations of the Senate Legal and Constitutional Legislation
Committee (‘the SLCL Committee’) in its report on the
Bill, and address a number of minor and technical issues that have
arisen or have been identified, since the introduction of the Bill
into Parliament.

The
amendments that respond to recommendations of the SLCL Committee
would:

·
limit the range of offences in respect of which a controlled
operation may be authorised to more serious offences, as specified
(item 3; recommendation 1);

·
clarify the terminology in Part 1C of the Crimes Act and a
cross-reference in the Fisheries Management Act 1991 , to
refer to ‘protected suspects’ rather than ‘deemed
arrest’ (items 29-32, 33, 34-37, 39-46, 48-61; recommendation
6);

·
ensure that the needs of hearing impaired and disabled people are
taken into account in explaining their rights to them under Part 1C
(items 33 and 47; recommendation 7).

· clarify the operation of the
offences in section 15 of the FTR Act (item 63).

Financial
Impact

The
amendments will have no financial impact.

NOTES ON
ITEMS

Item
1

This item would amend item 17 of schedule 1 to
the Bill as
introduced , to rectify a
misdescription of the entrapment test in proposed paragraph
15IB(1)(d). A person is subject to entrapment (and hence the
conduct by law enforcement is unauthorised) if the person is
induced to commit an offence of a different kind to the offence
that he or she did intend to commit. The wording of the
entrapment test in the Bill as introduced does not have this
effect. In the existing paragraph in the Bill, the words
‘an offence of that kind’ appear to refer to any
Commonwealth, State and Territory offence that the person under
investigation did not intend to commit, whereas those words should
refer to an offence of the same kind that person under
investigation did intend to commit. The proposed amendment
would clarify the operation of the test by making a minor change to
the structure of the paragraph.

Item
2

This item would amend item 17 of schedule 1 to
the Bill as
introduced , to rectify a
misdescription of the entrapment test in proposed paragraph
15IB(2)(e) in the same manner and for the same reasons as the
amendment contained in item 1 of the Government
amendments.

Item
3

This item would amend item 17 of schedule 1 to
the Bill as
introduced , to limit the
range of offences in respect of which a controlled operation may be
authorised to serious offences, as specified. This involves
an amendment to proposed subsection 15J(2) of the Crimes Act.
The amendment is a response recommendation 1 in the report of the
SLCL Committee.

The Australian
Federal Police would be able to authorise controlled operations for
the investigation of all Commonwealth offences that are punishable
by 3 or more years imprisonment .

The
National Crime Authority w ould be able to authorise controlled operations
for the investigation of all Commonwealth offences that are within
the definition of ‘relevant offence’ in section 4 of
the National Crime Authority Act 1984 . One of
the requirements within this definition is that the offence be
punishable by 3 years or more imprisonment.

The Australian Customs Service would be able to authorise
controlled operations to investigate the serious prohibited goods
import/export offences under sections 233BAA and 233BAB of the
Customs Act 1901 .

·
The section 233BAA offence carries a maximum penalties of 5 years
imprisonment and/or a $100,000 fine and applies to the unlawful
import and export of specified performance enhancing drugs;
specified non-narcotic drugs; and other specified goods.

·
The section 233BAB offence carries a maximum penalties of 10 years
imprisonment and/or a $250,000 fine and applies to the unlawful
import and export of specified firearms, munitions and military
warfare items of any kind including combat vests and body armour;
specified knives, daggers and other like goods; specified chemical
compounds; specified anti-personnel sprays and gases; specified
fissionable or radioactive substances; specified human body tissue
and fluids; items of child pornography or of child abuse material;
counterfeit credit, debit and charge cards; and other specified
goods.

Item
4

This item would amend item 20 of schedule 1 to
the Bill as
introduced , to rectify a
misdescription of the entrapment test in proposed paragraph 15M(c)
in the same manner and for the same reasons as the amendment
contained in item 1 of the Government amendments.

Item
5

This item
would amend the heading to proposed section 15PA in item 31 of
schedule 1 to the Bill as introduced. This is a technical
amendment only. The substantive provision allows for an
indemnity/immunity to continue in certain circumstances where a
person is unaware that the authorisation certificate has been
varied, surrendered, terminated or has expired. The heading
to the section as introduced does not refer to expiry, an oversight
that this amendment rectifies.

Item
6

This item
would amend the definition of ‘Commonwealth participating
agency’ in item 1 of Schedule 2 to the Bill as introduced, to
omit the references to the Defence Signals Directorate (DSD) and
the Defence Intelligence Organisation (DIO). DSD and DIO have
advised that they do not need to use assumed identities.
Removing them from the definition of “Commonwealth
participating agency’ would mean that they are not able to
authorise the acquisition and use of assumed identities.

Item
7

This item
would amend proposed subsection 15XA(1) in item 1 of schedule 2 to
the Bill as introduced, to allow the NSW Police Integrity
Commission to obtain and use assumed identities as a
‘participating agency’ for the purposes of Part
1AC. Although additional participating agencies can be
prescribed by regulation, the Police Integrity Commission is
squarely within the categories of agency intended to be able to use
the scheme.

Item
8

This item
would amend the heading to proposed section 15XU in item 1 of
schedule 2 to the Bill as introduced. This is a technical
amendment only. The substantive provision provides for the
keeping and auditing of records of assumed identities. The
heading to the section as introduced omits reference to
‘auditing’, an oversight that this amendment
rectifies.

Item
9

This Item
would insert a new subsection 15XU(1A) in item 1 of schedule 2 to
the Bill as introduced. The proposed subsection 15XU(1A)
would provide that audits of assumed identities records are not to
be conducted by a person responsible for issuing, varying or
revoking, or who was covered by, one of the identities to be
audited. This will guard against conflict of interest by
providing that auditing of assumed identities must be at arms
length from their use and decisions concerning their
use.

This
amendment, along with the amendment in item 10, responds to
concerns about the auditing process in the Bill as introduced,
reflected in recommendation 4 of the SLCL Committee
report.

Item
10

This item
would insert proposed new section 15XUA in item 1 of schedule 2 to
the Bill as introduced. Proposed section 15XUA would require
Commonwealth participating agencies (ie, agencies that may
authorise the use of assumed identities under proposed Part 1AC) to
report at the end of each financial year on:

(a) the
number of authorisations to use an assumed identity issued during
that financial year;

(b) a
general description of the activities undertaken pursuant to those
identities; and

(c) a
statement as to whether the audit of those identities revealed any
fraud or unlawful activity.

The
Australian Intelligence Security Organisation and Australian Secret
Intelligence Service would be required to report to the
Inspector-General of Intelligence and Security. The remaining
Commonwealth participating agencies would be required to report to
the Minister responsible for the agency, who would be required to
table the report in Parliament within 15 sitting
days.

Under
proposed subsection 15XUA(2), the report is not to include
information that the head of the agency views as likely to endanger
a person’s safety, prejudice an investigation or prosecution
or compromise the operational activities or methodologies of the
agency, if published. This caveat is necessitated by the
sensitivity of the information involved. For example, a
person who has used an identity may be at risk of reprisals from a
criminal group that has been infiltrated.

This
amendment, along with the amendment in item 9, responds to concerns
about the auditing process in the Bill as introduced, reflected in
recommendation 4 of the SLCL Committee report. It is designed
to enhance the transparency of the assumed identities
framework.

Items
11-22

These
items would amend proposed sections 15YA, 15YB, 15YC, 15YF, 15YG
and 15YH in item 1 to schedule 3 to the Bill as introduced.
The amendments replace the term ‘victim’ with
‘complainant’ and the term ‘victim’s’
with ‘complainant’s’.

Schedule
3 would insert Part 1AD in the Crimes Act, conferring certain
protections and safeguards in respect of child witnesses in
proceedings for Commonwealth sex offences. There are some
additional protections and safeguards for alleged victims,
reflecting the particular trauma that they may suffer in
court. However, use of the term ‘victim’ sets up
an inappropriate implication that it is known the alleged offence
occurred, which may be a contested matter in a criminal
proceeding. The amendments therefore introduce instead the
term ‘complainant’, which contains no presumption that
an offence has occurred or that the alleged victim is indeed the
victim.

These
amendments in no way alter the substantive protections and
safeguards that apply or the circumstances in which they
apply.

Item
23

This item
would amend proposed section15YQ in item 1 of schedule 3 to the
Bill as introduced. Section 15YQ prohibits a judge from
suggesting to a jury that certain categories of evidence are
unreliable. The existing paragraph 15YQ(a) in the Bill as
introduced provides that a judge is not to suggest that the law
regards ‘children as unreliable witnesses’. This
could be read as precluding a judge from suggesting that a
particular child is an unreliable witness, a matter that is
properly within a judge’s discretion.

The
proposed amendment to paragraph 15YQ(a) will more clearly reflect
the original intention by providing that a judge is not to suggest
that children are an unreliable ‘class’ of
witness.

Items
24-28

These
items would amend proposed section 15YR in item 1 of schedule 3 to
the Bill as introduced, to replace the term ‘victim’
with ‘complainant’ and the term ‘victims’
with ‘complainants’. The nature and purpose of
these amendments is the same as for items 11-22.

Items
29-32

These
items would amend the following sections currently in the Crimes
Act or proposed under this Bill - sections 23, 23AA and 23B.
It would do so by amending items 9, 10 and 12 of schedule 4 to the
Bill as introduced to insert references to a ‘protected
suspect’.

These
amendments respond to concerns reflected in recommendation 6 of the
report of the report of the SLCL Committee on the Bill. These
concerns related to the lack of clarity in the use of the term
‘arrest’ to mean
two mean different things (lawful arrest and deemed arrest) in Part
1C of the Crimes Act. The reason for the two concepts is that
actual arrest gives rise to a detention power and safeguards for
suspects, whereas deemed arrest gives rise only to safeguards for
suspects.

The proposed
amendments respond to the Committee’s criticism of the use of
the word ‘arrest’ to mean two different things by
replacing the ‘deemed arrest’ label with the phrase
‘protected suspect’. In other words, persons who
are currently deemed to be ‘under arrest’ would instead
be termed ‘protected suspects’. This will make it
clear that in the absence of ‘lawful arrest’, there is
no other power of arrest or detention created by the fact that a
person is in the company of an investigating official.
Rather, the extended operation of many of the provisions of Part 1C
(previously referred to as ‘deemed arrest’) is purely
directed to conferring safeguards and protections, a fact that will
be reflected in the new term ‘protected suspect’.
The amendments employ a clearer label only, and have no substantive
impact on the powers or rights conferred by Part 1C of the Crimes
Act. The definition of ‘protected suspect’ is
contained in item 36 of the government amendments.

Item 33

This item would amend the
definition of ‘inform’ in proposed section 23B(1) by
amending item 13 of the Bill as introduced. The amendment
would require an investigating official to notify a person of his
or her rights under Part 1C in a manner in which the official
reasonably believes the person can understand having regard to any
apparent disability. For example, in administering a caution
to an intellectually disabled person an official would be required
to speak slowly and use simple, clear language if that would assist
the person’s understanding.

The proposed
amendment would also insert a reference to ‘protected
suspect’ for the reasons outlined in relation to items
29-32.

Items 34-37

These
items would amend section 23B of the Crimes Act by inserting items
14A and 15A, amending item 15 and omitting items 16-19 of the Bill
as introduced. Item 36 contains a proposed definition of
protected suspect, to be inserted in subsection 23B(2) of the
Crimes Act. The remaining items insert
references to ‘protected suspect’.
The reasons for the amendments are outlined in relation to items
29-32.

In keeping
with the circumstances that currently constitute ‘deemed
arrest’, the definition of ‘protected suspect’
will apply to a person who is in the company of an investigating
official for the purpose of being questioned, if:

·
the official believes that there is sufficient evidence to
establish that the person has committed a Commonwealth offence that
is to be the subject of the questioning; or

·
the official would not allow the person to leave if the person
wished to do so; or

·
the official has given the person reasonable grounds for believing
that the person would not be allowed to leave if he or she wished
to do so.

Current
exceptions to this definition (as amended by the Bill), would
remain, namely where:

·
the official is performing functions in relation to persons or
goods entering or leaving Australia and the official does not
believe that the person has committed a Commonwealth offence;
or

·
the official is exercising detention, search, information gathering
or questioning power under a law of the Commonwealth.

The safeguards that arise in circumstances of
deemed arrest (and that would therefore arise where a person is a
‘protected suspect’) include:

· to communicate
with a friend or relative and legal practitioner (section
23G);

· in the case of
an Aboriginal person or Torres Strait Islander or person under 18 -
to have an interview friend present during questioning (section
23H);

· in appropriate
cases - to an interpreter (section 23N);

· in the case of
a foreign national or stateless person - to communicate with the
appropriate consular office (section 23P).

Item
38

This item
would amend proposed subsection 23B(3) in item 20 of schedule 4 to
the Bill. The amendment would provide that remand under
additional provisions of the
Service and Execution of Process Act 1992 (‘SEP
Act’) to those previously specified, does not terminate the
application of Part 1C of the Crimes Act to that
person.

The general
rule in both the version of subsection 23B(3) in the Bill as
introduced and in the Government amendments, is that once a person
who has been arrested for a Commonwealth offence has been remanded
by a magistrate in respect of that offence, the person ceases to be
treated as being under arrest (or as the subject of questioning
safeguards) for that offence for the purposes of Part
1C.

In the usual
situation remand terminates the initial phase in which a person may
be arrested, detained and questioned, with the person then being
held by correctional authorities or released on bail prior to
trial. The phase to which Part 1C applies is over, hence
remand (in effect) terminates the application of Part
1C.

The reason for
exempting specified provisions of the SEP Act from this general
rule is that ‘remand’ has different consequences where
the SEP Act is involved. The SEP Act comes into play in
circumstances where an arrestee is to be transferred from one state
or territory to another. Remand operates as an interim step
in the process of transfer, and arrest, detention and questioning
may continue after the transfer has occurred. Accordingly, it
is not appropriate that Part 1C cease to apply.

The existing
amendment in the Bill as introduced does not extend to the full
range of SEP Act provisions under which this situation may arise
and therefore the proposed new subsection 23B(3) in the Government
amendments adds references to paragraph 83(8)(a), subsection
83(12), paragraph 83(14)(a) and subparagraphs 84(4)(a)(ii) and
84(6)(a)(i) of the SEP Act.

Items
39-46

These
items would amend sections 23B, 23C, 23D, 23E and 23F in Part 1C of
the Crimes Act as amended by the Bill and the headings to Division
2 and 3, by inserting items 20A, 21A and 40A in schedule 4 to the
Bill and amending items 21, 25, 30, 36 and 40. The proposed
amendments would replace the deemed arrest label with the clear
term ‘protected suspect’, for the reasons outlined in
relation to items 29-32.

Item
47

This item
would amend section 23F of the Crimes Act, as proposed to be
amended by item 41 of schedule 4 to the Bill as introduced.
The amendment clarifies that although a caution may be given in
writing to a person suffering a hearing impairment, the caution
does not have to be given in writing unless this is the most
appropriate means of communication.

The
amendment responds to recommendation 7 in the report of the SLCL
Committee on the report.

Items
48-55

These
items would amend sections 23G, 23H, 23J, 23K, 23M and 23N in Part
1C of the Crimes Act as amended by the Bill as introduced, by
inserting items 41A, 41B, 42A, 43A, 43B, 44A, 46A, 47A, 47B, 47C,
48A and 51A in schedule 4 to the Bill as introduced. The
proposed amendments would replace the deemed arrest label with the
clear term ‘protected suspect’, for the reasons
outlined in relation to items 29-32.

Item
56

This item
would amend the proposed new heading to section 23P in item 52 of
schedule 4 to the Bill as introduced. This is a technical
amendment only. The substantive provision would confer rights
on both foreign nationals and stateless persons to communicate with
a consular office. The heading to the section in the Bill as
introduced refers only to foreign nationals, omitting reference to
stateless persons, a limitation the new heading removes.

Items
57-60

These
items would amend sections 23P, 23Q and 23U as amended by the Bill,
by amending item 52 and inserting items 52A, 53A and 53B in
schedule 4 to the Bill as introduced. The proposed amendments
would replace the deemed arrest label with the clear term
‘protected suspect’, for the reasons outlined in
relation to items 29-32.

Item
61

This item
would amend paragraph 84A(2)(a) of the Fisheries Management Act
1991 , by inserting item 70 in schedule 4 to the Bill.
Section 84A of the Fisheries Management Act regulates the detention
of persons suspected of committing certain offences against that
Act. The detention power arises only where the officer has
reasonable grounds to believe that the person: is not an Australian
citizen or an Australian resident, and was on a foreign boat when
it was used in the commission of such an offence (paragraph
84(1)(ia)).

The
safeguards generally applicable to persons questioned as suspects
under Part 1C of the Crimes Act are expressed to apply to detainees
under this Fisheries Management Act power, pursuant to subsection
84A(2) of the Fisheries Management Act. As no formal arrest
is involved, the detention is treated as deemed arrest for the
purposes of the application of Part 1C safeguards. The
reference to the person being treated ‘as if’ he or she
was ‘under arrest’ will be changed to a reference to
the person being ‘a protected suspect’ within the
meaning of Part 1C, for the reasons outlined in relation to items
29-32.

Item
62

This item
would amend paragraph 12G(7)(a) of the AFP Act by inserting item 5A
in schedule 5 of the Bill as introduced. Under subsection
12G(7) of the AFP Act, a Judge or nominated AAT member is to have
regard to certain matters before issuing a listening device.
These matters include the impact on a person’s privacy in
relation to the ‘the person or premises’ in respect of
which the use of the device would be authorised. Although a
listening device could previously only be issued in respect of a
person or premises, the amendments proposed in schedule 5 to the
Bill would allow a listening device to be issued in respect of an
‘item’. The proposed amendment to the Bill
clarifies that privacy considerations are to be taken into account
where the issuing of a listening device warrant is in respect of an
item, as they are in respect of persons and premises.

Item
63

This item
would amend subsections 15(1) and 15(5) of the FTR Act, by
inserting items 3A to 3F in schedule 6 to the Bill as
introduced. Subsection 15(1) and 15(5) create offences
relating to a failure to report a specified currency
transfer. The amendment would clarify a matter not addressed
in the Criminal Code harmonisation process, namely that
strict liability applies to the elements of the offences relating
to requirement to report.